Mitchell v. Johnson et al
Filing
20
MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 3/12/2020. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
FREDERICK H. MITCHELL,
Petitioner,
Civil Action No.16-907-RGA
V.
ROBERT MAY, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents. 1
MEMORANDUM OPINION
Frederick H. Mitchell. Pro se Petitioner.
Kathryn J. Garrison, Deputy Attorney General of the Delaware Department of Justice,
Wilmington, Delaware. Attorney for Respondents.
March ( ; , 2020
Wilmington, Delaware
1
Warden Robert May has replaced former Warden G.R. Johnson, an original party to the case.
See Fed. R. Civ. P. 25(d).
Pre~ntly pending be ore the Court is Petitioner Frederick H. Mitchell ' s Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition"). (D.I. 1) The State filed an
Answer in opposition. (D.I. 6) For the reasons discussed, the Court will dismiss the Petition.
I.
BACKGROUND
In August 2014, Petitioner was indicted on charges of aggravated drug dealing,
aggravated possession of heroin, second degree conspiracy, possession of marijuana, resisting
arrest, tampering with physical evidence, failure to wear a seatbelt, and two counts of possession
of drug paraphernalia. (D.I. 6 at 1) On January 21, 2015, Petitioner pied guilty to possession of
heroin in a Tier 4 quantity (as the lesser included offense of possession of heroin in a Tier 5
quantity) and second degree conspiracy. Id. The Superior Court sentenced Petitioner to a total
of seventeen years of Level V incarceration, suspended after eight years for eighteen months of
Level III probation. See Mitchell v. State, 128 A.3d 994 (Table), 2015 WL 7575022, at *1 (Del.
Nov. 24, 2015). Petitioner filed a motion to reduce sentence on April 9, 2014, which the
Superior Court denied. (D.I. 6 at 2) He appealed his convictions and sentences, and the
Delaware Supreme Court affirmed the Superior Court's decision on November 24, 2015. See
Mitchell, 2015 WL 7575022, at *2.
In January 2016, Petitioner filed a pro se motion for post-conviction relief pursuant to
Rule 61. See State v. Mitchell, 2016 WL 1621580, at *1 (Del. Super. Ct. Mar. 22, 2016). The
Superior Court denied the Rule 61 motion. Id. Petitioner appealed, and the Delaware Supreme
Court affirmed the Superior Court's judgment in August 2016. See Mitchell v. State, 145 A.3d
508 (Table), 2016 WL 4191930, at *2 (Del. Aug. 4, 2016).
II.
GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default
Absent exceptional circumstances, a federal court cannot grant habeas relief unless the
petitioner has exhausted all means of available relief under state law. See 28 U.S.C. § 2254(b);
0 'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999); Picard v. Connor, 404 U.S. 270, 275
(1971 ). The AEDP A states, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the
applicant.
28 U.S.C. § 2254(b)(l).
The exhaustion requirement is based on principles of comity, requiring a petitioner to
give "state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State' s established appellate review process." O 'Sullivan, 526 U.S. at
844-45 ; see Werts v. Vaughn , 228 F.3d 178, 192 (3d Cir. 2000). A petitioner satisfies the
exhaustion requirement by demonstrating that the habeas claims were "fairly presented" to the
state' s highest court, either on direct appeal or in a post-conviction proceeding, in a procedural
manner permitting the court to consider the claims on their merits. Bell v. Cone, 543 U.S. 447,
451 n.3 (2005); Castille v. Peoples, 489 U.S. 346, 351 (1989). A federal legal claim is "fairly
presented" to state courts when there is: "(1) reliance on pertinent federal cases employing
constitutional analysis; (2) reliance on state cases employing constitutional analysis in like fact
situations; (3) assertion of the claim in terms so particular as to call to mind a specific right
2
protected by the Constitution; [or] (4) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999).
A petitioner' s failure to exhaust state remedies will be excused if state procedural rules
preclude him from seeking further relief in state courts. See Lines v. Larkins, 208 F.3d 153, 160
(3d Cir. 2000); Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although treated as technically
exhausted, such claims are nonetheless procedurally defaulted. See Lines, 208 F.3d at 160;
Coleman v. Thompson , 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas
claim to the state's highest court, but that court "clearly and expressly" refuses to review the
merits of the claim due to an independent and adequate state procedural rule, the claim is
exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S.
255, 260-64 (1989).
Federal courts may not consider the merits of procedurally defaulted claims unless the
petitioner demonstrates either cause for the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will result if the court does not review the
claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 50 l U.S. at
750-51 . To demonstrate cause for a procedural default, a petitioner must show that "some
objective factor external to the defense impeded counsel ' s efforts to comply with the State's
procedural rule. " Murray v. Carrier, 477 U.S. 478,488 (1986). To demonstrate actual
prejudice, a petitioner must show "that [the errors at trial] worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494.
3
Alternatively, a federal court may excuse a procedural default if the petitioner
demonstrates that failure to review the claim will result in a fundamental miscarriage of justice.
See Edwards v. Carpenter, 529 U .S. 446,451 (2000); Wenger v. Frank, 266 F.3d 218,224 (3d
Cir. 2001 ). A petitioner demonstrates a miscarriage of justice by showing a "constitutional
violation has probably resulted in the conviction of one who is actually innocent." Murray, 477
U.S . at 496. Actual innocence means factual innocence, not legal insufficiency. See Bousley v.
United States, 523 U.S. 614, 623 (1998). In order to establish actual innocence, the petitioner
must present new reliable evidence - not presented at trial - that demonstrates "it is more likely
than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt. "
House v. Bell, 547 U.S. 518, 537-38 (2006); see Sweger v. Chesney, 294 F.3d 506, 522-24 (3d
Cir. 2002).
B. Standard of Review
If a state ' s highest court adjudicated a federal habeas claim on the merits, the federal
court must review the claim under the deferential standard contained in 28 U .S.C. § 2254(d).
Pursuant to 28 U.S.C. § 2254(d), federal habeas relief may only be granted if the state court's
decision was "contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States," or the state court' s decision was
an unreasonable determination of the facts based on the evidence adduced in the trial. 28 U.S.C.
§ 2254(d)(l) & (2); see also Williams v. Taylor, 529 U.S. 362,412 (2000); Appel v. Horn , 250
F.3d 203 , 210 (3d Cir. 2001). A claim has been "adjudicated on the merits" for the purposes of
28 U.S.C. § 2254(d) if the state court decision finally resolves the claim on the basis of its
substance, rather than on a procedural or some other ground. See Thomas v. Horn, 570 F.3d 105,
4
115 (3d Cir. 2009). The deferential standard of§ 2254(d) applies even "when a state court' s
order is unaccompanied by an opinion explaining the reasons relief has been denied. "
Harrington v. Richter, 562 U.S. 86, 98 (2011). As explained by the Supreme Court, "it may be
presumed that the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary." Id. at 99.
Finally, when reviewing a habeas claim, a federal court must presume that the state
court's determinations of factual issues are correct. See 28 U.S.C. § 2254(e)(l). This
I
presumption of correctness applies to both explicit and implicit findings of fact, and is only
rebutted by clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(l);
Campbell v. Vaughn , 209 F.3d 280, 286 (3d Cir. 2000); Miller-El v. Cockrell, 537 U.S. 322, 341
(2003) (stating that the clear and convincing standard in § 2254(e)( 1) applies to "factual issues,"
whereas the unreasonable application standard of§ 2254(d)(2) applies to "decisions").
III.
DISCUSSION
Petitioner timely filed his§ 2254 Petition, which asserts the following four Claims: (1)
defense counsel provided ineffective assistance by advising him to enter a guilty plea without
first obtaining a forensic report and/or investigating the drug evidence in his case; (2) the State
failed in its duty to test the drugs and to provide him with the test results and chain of custody
information before he entered his plea; (3) the Superior Court abused its discretion in sentencing
him without a forensic report proving the alleged drugs were an illegal substance; and (4)
defense counsel coerced him into pleading guilty by untruthfully telling him that there was a lab
report that showed the substances had been confirmed as illegal drugs despite the fact that there
was no lab report.
5
A. Claim One: Ineffective Assistance of Counsel
In Claim One, Petitioner contends that defense counsel was ineffective for advising him
to plead guilty without first investigating the chain of custody of the drugs and obtaining a
forensic report concerning the result of any drug evidence testing. (D.I. 1 at 6) According to
Petitioner, without such investigation, defense counsel had no way of knowing the true weight of
the drugs or whether they were an illicit substance. 2 Id. Petitioner presented this same
argument to the Superior Court in his Rule 61 motion, which denied the argument as meritless
because Petitioner voluntarily, knowingly, and intelligently entered a guilty plea. See State v.
Mitchell, 2016 WL 1621580, at *2 (Del. Super. Ct. Mar. 22, 2016). The Delaware Supreme
Court affirmed that decision. See Mitchell v. State, 145 A.3d 508 (Table), 2016 WL 4191930, at
*2 (Del. Aug. 4, 2016). Consequently, Petitioner will only be entitled to habeas relief if the
Delaware Supreme Court's decision was contrary to, or involved an unreasonable application of,
clearly established Federal law.
The clearly established Supreme Court precedent governing ineffective assistance of
counsel claims is the two-pronged standard enunciated by Strickland v. Washington, 466 U.S.
668 (1984) and its progeny. See Wiggins v. Smith, 539 U.S. 510 (2003). Under the first
Strickland prong, a petitioner must demonstrate that "counsel's representation fell below an
objective standard ofreasonableness," with reasonableness being judged under professional
2
The police sent the drugs to a lab for testing, and the Superior Court docket indicates that the
prosecutor provided "lab reports" to defense counsel on December 3, 2014. (D.I. 10-1 at 10,
Entry No. 13) Petitioner entered his guilty plea on January 21 , 20 15 . (D.I. 10-1 at 10, Entry No.
18) Nothing in the record indicates if defense counsel reviewed the lab report before Petitioner
entered his guilty plea. However, the Rule 26(c) opening appellate brief written by defense
counsel asserts, "The total number of bags of heroin found in the car was 5,374. The weight of
the heroin was later determined to be approximately 71 grams of heroin." (D.I. 10 at 5)
6
norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688. Under the
second Strickland prong, a petitioner must demonstrate "there is a reasonable probability that,
but for counsel ' s unprofessional errors, the result of the proceeding would have been different. "
Id. at 694. A reasonable probability is a "probability sufficient to undermine confidence in the
outcome." Id. A petitioner must make concrete allegations of actual prejudice and substantiate
them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253 , 259-60 (3d Cir. 1991);
Dooley v. Petsock, 816 F.2d 885, 891-92 (3d Cir. 1987). In the context of a guilty plea, a
petitioner satisfies Strickland' s prejudice prong by demonstrating that, but for counsel's error,
there is a reasonable probability that he would have insisted on proceeding to trial instead of
pleading guilty. See Hill v. Lockhart, 474 U.S. 52, 58 (1985). A court can choose to address the
prejudice prong before the deficient performance prong, and reject an ineffective assistance of
counsel claim solely on the ground that the defendant was not prejudiced. See Strickland, 466
U.S . at 698. Finally, although not insurmountable, the Strickland standard is highly demanding
and leads to a "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689.
With respect to the first prong of the § 2254( d)( 1) inquiry, a "state court decision is
contrary to clearly established federal law if it applies a rule that contradicts the governing law
set forth in Supreme Court precedent, or if it confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result
different from that reached by the Supreme Court." Eley v. Erickson, 712 F.3d 837, 846 (3d Cir.
2013). In this case, the Delaware Supreme Court's decision was not contrary to clearly
established federal law because it correctly identified the Strickland/Hill standard applicable to
7
Claim One. 3 See Fahy v. Horn, 516 F.3d 169, 196 (3d Cir.2008) (Pennsylvania Supreme Court' s
decision was not "contrary to" clearly established federal law because it appropriately relied on
its own state court cases, which articulated the proper standard derived from Supreme Court
precedent); Williams, 529 U.S. at 406 (" [A] run-of-the-mill state-court decision applying the
correct legal rule from [Supreme Court] cases to the facts of a prisoner' s case [does] not fit
comfortably within§ 2254(d)(l) ' s ' contrary to ' clause").
The Court must also determine if the Delaware Supreme Court reasonably applied the
Strickland/Hill standard to the facts of Petitioner' s case. When performing the second prong of
the§ 2254(d) inquiry, the Court must review the Delaware Supreme Court' s decision with
respect to Petitioner' s ineffective assistance of counsel claim through a "doubly deferential"
lens.4 See Richter, 562 U.S. at 105. Notably, when § 2254(d) applies, "the question is not
whether counsel's actions were reasonable, [but rather] , whether there is any reasonable
argument that counsel satisfied Strickland' s deferential standard." Id. When assessing prejudice
under Strickland, the question is "whether it is reasonably likely the result would have been
different" but for counsel's performance, and the "likelihood of a different result must be
substantial, not just conceivable." Id. And finally, when viewing a state court' s determination
3
The Delaware Supreme Court referenced "the familiar Strickland test" and cited to a Delaware
case that articulated the Strickland test. See Mitchell, 2016 WL 4191930, at *1 (citing Neal v.
State , 80 A.3d 935 , 941-42 (Del. 2013)).
4
As explained by the Richter Court,
[t]he standards created by Strickland and § 2254( d) are both "highly deferential," and
when the two apply in tandem, review is doubly so. The Strickland standard is a general
one, so the range of reasonable applications is substantial. Federal habeas courts must
guard against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d).
Richter, 562 U.S. at 105 (internal citations omitted).
8
that a Strickland claim lacks merit through the lens of§ 2254( d), federal habeas relief is
precluded "so long as fairminded jurists could disagree on the correctness of the state court' s
decision." Id. at 101.
On post-conviction appeal, the Delaware Supreme Court denied as meritless Petitioner' s
contention that defense counsel was ineffective for not obtaining a forensic analysis of the seized
drugs before advising him to plead guilty. The Delaware Supreme Court determined that: (1)
Petitioner' s statements during his guilty plea colloquy belied his assertion that defense counsel's
failure to obtain the test during the pre-plea time period coerced him into entering a guilty plea;
and (2) Petitioner failed to demonstrate how counsel's failure to obtain a lab report prejudiced
him. For the reasons set forth below, the Court concludes that this decision involved a
reasonable application of the Strickland/ Hill standard.
It is well-settled that " [s]olernn declarations in open court carry a strong presumption of
verity" that create a "formidable barrier in any subsequent collateral proceedings." Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Here, the transcript of Petitioner' s plea colloquy contains his
clear and explicit statements that he discussed his case with defense counsel and he was satisfied
with his opportunity to confer with defense counsel. (D.I. 10-1 at 30-32, 34, 36) Petitioner
explicitly acknowledged that he and defense counsel had reviewed the evidence and penalties for
the two charges to which he was pleading guilty. (Id. at 34) Petitioner understood the
constitutional rights he was waiving by pleading guilty, and also understood that he faced a total
maximum sentence of seventeen years if convicted at trial. (Id. at 32-36) In turn, the Truth-InSentencing Guilty Plea Form signed by Petitioner indicates that he knowingly and voluntarily
entered into his plea agreement; he was satisfied with defense counsel's representation and that
9
defense counsel had fully advised him of his rights ; he had not been promised anything not
contained in the plea agreement; he was not forced or threatened to enter the plea agreement; and
he knew he faced a possible total maximum sentence of seventeen years for the offense in the
plea agreement. (D.I. 10-2 at 16)
Petitioner' s unsupported allegations in this proceeding fail to provide compelling
evidence as to why the statements he made during the plea colloquy should not be presumptively
accepted as true. Consequently, the Delaware Supreme Court reasonably applied Blackledge in
holding that Petitioner was bound by the representations he made during the plea colloquy and
on the Truth-In-Sentencing form. 5
In addition, Petitioner cannot demonstrate a reasonable probability that he would have
gone to trial but for defense counsel' s failure to obtain forensic testing of the drugs seized by the
police. First, he does not assert that forensic testing of the drug evidence would have shown that
the drugs were not heroin. Second, there was substantial evidence of Petitioner' s guilt. The
police recovered approximately 5,374 small bags of suspected heroin, weighing 80.67 grams,6
and 27.6 grams of suspected marijuana, in the car Petitioner was driving; when the police
stopped the car, Petitioner informed the officer that there was marijuana on the front seat that
belonged to him. (D.I. 10-2 at 13) The police conducted a field test and the drugs tested positive
for heroin and marijuana. (Id. at 13) The police also discovered in the car a digital scale to
weigh the drugs and baggies to store the drugs. (Id. at 12-13) When subsequently interviewed
5
Although the Delaware Supreme Court did not cite Blackledge when determining the
voluntariness of Petitioner' s guilty plea, the Delaware case to which it cited-Somerville v. State,
703 A.2d 629, 632 (Del. 1997) -did cite to Blackledge.
6
This was not a lab weight, as it appears in the arrest affidavit.
10
by the police, Petitioner also admitted that he knew there was heroin in the car and that he
touched it. (D.I. 10-1 at 47) Text messages on Petitioner' s cell phone were indicative of drug
dealing. (Id. at 48)
Third, Petitioner received a significant benefit by pleading guilty. In exchange for his
plea, the State allowed Petitioner to plead guilty to a lesser-included offense and dropped several
charges, significantly reducing the amount of prison time he faced .7
Given all of these circumstances, Petitioner cannot satisfy the prejudice prong of the
Strickland/Hill standard. Accordingly, the Court concludes that the Delaware Supreme
reasonably applied clearly established federal law in denying Clain:i One.
B. Claim Two: State's Duty to Provide Lab Report Before Entry of Plea
In Claim Two, Petitioner contends the State had a duty to test the drug evidence in his
case and provide him with a report of the test results so that he could "craft an intelligent defense
or enter an intelligent plea deal." (D.I. 1 at 8) Petitioner presented this Claim to the Superior
Court, which denied it as waived by Petitioner' s voluntary plea of guilty. See Mitchell, 2016 WL
1621580, at *3. Petitioner also presented Claim Two on post-conviction appeal, but the
Delaware Supreme Court did not specifically address it. See Mitchell, 2016 WL 4191930, at *l.
7
Petitioner was indicted on the following charges: (1) Tier 5 aggravated possession of controlled
substance (heroin); (2) Tier 4 drug dealing (morphine, opium, any salt, isomer or salt of an
isomer thereof, or heroin); (3) second degree conspiracy; (4) possession of a controlled substance
plus aggravator; (5) resisting arrest; (6) tampering with physical evidence; (7) possession of drug
paraphernalia; (8) possession of drug paraphernalia; and (9) failure to wear a seatbelt. (D.I. 1010) He pled guilty to possession of heroin in a Tier 4 quantity (as the lesser included offense of
possession of heroin in a Tier 5 quantity) and second degree conspiracy.
11
In these circumstances, the Court must review Claim Two de novo. 8 See Breakiron v. Horn , 642
F.3d 126, 131 (3d Cir.201 l)(explaining that a habeas claim must be reviewed de novo if the
state's highest court did not adjudicate the merits of an exhausted claim that is otherwise
properly before the court).
Although not entirely clear, Petitioner appears to contend that his plea was unintelligent
because he did not have all the relevant information (i. e., a lab report proving he possessed
illegal drugs) when deciding whether to enter a guilty plea. Liberally construing this argument
as corresponding with the Brady v. Maryland argument Petitioner presented on post-conviction
appeal (D.I. 10-4 at 9-10), the Court views Claim Two as alleging that the State violated federal
constitutional law by failing to provide Petitioner with a lab report concerning the drug evidence
test results before he entered his plea.
Petitioner' s argument is frivolous . Although the State is constitutionally required to
disclose material exculpatory or impeachment evidence prior to a defendant's criminal trial,9 the
"Constitution does not require the Government to disclose material impeachment evidence prior
to entering a plea agreement with a criminal defendant." United States v. Ruiz, 536 U.S. 622,
633 (2002). As the Supreme Court explained in Ruiz, "the Constitution, in respect to a
defendant' s awareness ofrelevant circumstances, does not require complete knowledge of the
relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver
of various constitutional rights, despite various forms of misapprehension under which a
8
De nova review means that the Court "must exercise its independent judgment when deciding
both questions of constitutional law and mixed constitutional questions." Williams v. Taylor,
529 U.S. 362, 400 (2000)(Justice O'Connor concurring).
9
See Brady v. Maryland, 373 U.S. 83, 87 (1963)(emphasis added).
12
defendant might labor." Id. at 630. Significantly, Petitioner does not contend that the lab report
would have contained exculpatory or impeaching evidence. But even if it did, the State was not
constitutionally required to disclose that evidence prior to the entry of Petitioner' s plea. Thus,
Claim Two does not warrant habeas relief.
Moreover, in Tollett v. Henderson, the Supreme Court held:
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S . 258,267 (1973). A voluntary and knowing guilty plea bars
a defendant from raising antecedent non-jurisdictional 10 constitutional violations "not logically
inconsistent with the valid establishment of factual guilt and which do not stand in the way of
conviction if factual guilt is established. " Menna v. New York, 423 U.S. 61 , 62 n. 2 (1975).
Having just determined in its discussion of Claim One that Petitioner' s guilty plea was voluntary,
intelligent, and knowing, the Court alternatively concludes that Petitioner waived his right to
assert the instant pre-plea Brady/evidence argument.
Accordingly, the Court will deny Claim Two as meritless.
10
As explained by the Court of Appeals for the Tenth Circuit, the term non-jurisdictional is
somewhat confusing; rather, "[t]he most accurate statement of the law would be ... [that a] guilty
plea waives all defenses except those that go to the court' s subject-matter jurisdiction and the
narrow class of constitutional claims involving the right not to be haled into court." United
States v. De Vaughn, 694 F.3d 1141 , 1193 (10 th Cir. 2012).
13
C. Claim Three: The Superior Court Sentenced Petitioner Without Lab Report
Claim Three asserts the following : the "Superior Court abused its discretion in sentencing
[Petitioner] should have been provided with a forensic analysis report on the drugs to prove a
positive test result, evidentiary value was not met." (D.I. 1 at 9) The Court liberally construes
Claim Three as asserting an argument that the sentencing court violated Petitioner' s due process
rights by determining his sentence without referring to a forensic lab report to verify the drug
identity and/or quantity. 11 In essence, Petitioner appears to contend that a lab report would be
the only source of reliable or accurate information regarding the drug evidence.
The record reveals that Petitioner did not present Claim Three to the Delaware state
courts as a federal constitutional issue. For instance, on direct appeal, counsel' s Rule 26(c)
brief12 presented Petitioner' s argument that the sentencing court violated his due process rights
11
While the Petition does not assert any explicit federal due process argument with respect to
Petitioner's sentence, Petitioner' s Response to the State' s Reply to his Motion to Amend actually
contains as an exhibit a copy of the same federal due process/mitigating factors sentencing
argument Petitioner presented on direct appeal. (D.I. 19) The Court does not view the due
process argument exhibited in that Response as asserting a Claim to be reviewed in this
proceeding. Rather, Petitioner attached the argument to his Response to illustrate why he
believed amending his Petition with his three new proposed Claims would not be futile. The
Court discusses Petitioner's request to amend later in the Opinion. See infra at Section IV.
12
Recognizing that an attorney is "under an ethical obligation to refuse to prosecute a frivolous
appeal," the Supreme Court has held that an attorney may withdraw from representing a client on
appeal, so long as the attorney follows a procedure that "affords adequate and effective appellate
review to [the] indigent defendant[]" and therefore "reasonably ensures that an indigent appeal
will be resolved in a way that is related to the merit of that appeal." Smith v. Robbins, 528 U.S.
259, 272, 276-77 (2000). In Anders v. California, 386 U.S. 738 (1967), the United States
Supreme Court articulated a procedure designed to protect an indigent appellant' s constitutional
rights when his attorney moves to withdraw. Pursuant to Anders, appellate counsel must conduct
a "conscientious examination" of the case before seeking to withdraw from the case, and then
file an appellate brief "referring to anything in the record that might arguably support the
appeal." Anders, 386 U.S. at 744. In Delaware, motions to withdraw from representing an
appellant are governed by Delaware Supreme Court Rule 26( c) which, in turn, is modeled on the
procedure set forth in Anders. See Del. Sup. Ct. R. 26, Committee Comment. In this case,
14
by failing to weigh all applicable mitigating and aggravating factors. (D.I. 10 at 11-12)
However, nothing in that particular argument referenced the sentencing court' s failure to obtain
or review a forensic lab report. In turn, on post-conviction appeal, Petitioner presented the three
sentencing arguments: (1) the sentencing court abused its discretion by not reviewing or
obtaining a forensic lab report concerning the drug evidence before determining his sentence; (2)
the sentencing court sentenced him with a closed mind; and (3) the sentencing court failed to
weigh the mitigating factors against the aggravating factors. (D.I. 10-4). None of them were
asserted as a violation of his federal due process rights. Notably, Petitioner did not cite due
process, the Constitution, or any other federal law in relation to the forensic test/sentencing
argument he presented to the Delaware Supreme Court on post-conviction appeal, nor did he
discuss the argument in terms that brought to mind a federal constitutional violation. 13 Basically,
Petitioner' s post-conviction appellate argument concerning the sentencing court's failure to
obtain and/or review a forensic lab report merely asserted trial court error and failed to notify the
state appellate court of the federal nature of his argument. See, e. g. , Baldwin v. Reese, 541 U. S.
27, 33 (2004) (noting that the petitioner' s reference "to provisions of the Federal Constitution in
respect to other claims but not in respect to this one" did not "alert[] the court to the alleged
federal nature of the claim.") This conclusion is supported by the fact that the Delaware
defense counsel filed an opening appellate brief under Rule 26(c) containing Petitioner' s
proposed arguments and a motion to withdraw, asserting that he "made a conscientious
examination of the record and law and concludes that this appeal is wholly without merit." (D.I.
10 at 9)
13
The federal caselaw Petitioner included in his post-conviction opening appellate brief involved
ineffective assistance of counsel and the State' s obligation to disclose exculpatory or impeaching
evidence under Brady v. Maryland. None of the federal caselaw involved a state court' s alleged
abuse of discretion during sentencing.
15
Supreme Court viewed Petitioner's "lack of forensic report argument" as alleging that the
"Superior Court sentenced him with a closed mind because it did not have any forensic test
results before imposing sentence." Mitchell, 2016 WL 4191930, at * 1. Construed in this
manner, the Delaware Supreme Court held that the argument was improperly raised in a Rule 61
proceeding or, alternatively, was barred under Rule 61 (i)(4) for being previously adjudicated on
direct appeal. 14
14
On direct appeal, Petitioner argued that the Superior Court violated his due process right to a
fair sentence by failing to weigh all applicable mitigating and aggravating factors. (D.I. 10 at 12)
The Delaware Supreme denied Petitioner' s argument as factually baseless without addressing
any due process issue, explaining:
Second, [Petitioner's] claim that the sentencing order does not refer
to any of the aggravating factors the Superior Court relied upon is
incorrect. The sentencing order identifies prior violent criminal
activity as an aggravating factor. The Superior Court noted at the
sentencing hearing that [Petitioner] had a prior conviction for
Possession with Intent to Deliver, which is classified as a violent
felony . The Superior Court also noted at the sentencing hearing that
a large amount of heroin was found in [Petitioner' s] car and that
[Petitioner] changed his statements to the police over time in order
to minimize his involvement.
*
*
*
Finally, [Petitioner' s] claim that the Superior Court failed to
consider the applicable mitigating factors and weigh those factors
against the aggravating factors is without merit. Evidence of
mitigating factors-including [Petitioner' s] employment history
and cooperation with authorities-was presented to the Superior
Court. The fact that the Superior Court was more swayed by other
factors-including [Petitioner' s] previous conviction Possession
with Intent to Deliver, the large amount of heroin found in
[Petitioner's] car, and [Petitioner's] attempts to minimize his
involvement-does not mean that the Superior Court failed to
consider the mitigating factors or sufficiently weigh those factors.
Mitchell, 2015 WL 7575022, at *2. The Court has not found any reference to Petitioner's
"closed mind" argument in the Rule 26(c) opening appellate brief or in the Delaware Supreme
Court's appellate decision.
16
Given this record, the Court concludes that Petitioner did not fairly present the instant
federal due process/sentencing argument to the Delaware Supreme Court on direct or postconviction appeal. Consequently, Claim Three is unexhausted.
At this juncture, any attempt by Petitioner to raise Claim Three in a new Rule 61 motion
would be barred as untimely under Delaware Superior Court Criminal Rule 61(i)(l). See
DeAngelo v. Johnson , 2014 WL 4079357, at* 12 (D. Del. Aug. 15, 2014). Although Rule
61 (i)(l) provides for an exception to the one-year time limitation if the untimely Rule 61 motion
"asserts a retroactively applicable right that is newly recognized after the judgment of conviction
is final," no such right is implicated in the instant Claim. Similarly, the exceptions to Rule
61(i)(l)' s time-bar contained in Rule 61(i)(5) and (d)(2) do not apply to Petitioner' s case,
because he does not allege actual innocence, lack of jurisdiction, or that a new rule of
constitutional law applies to this Claim.
Since Petitioner is precluded from exhausting Claim Three at this point, the Court must
treat the Claim as technically exhausted but procedurally defaulted. Consequently, the Court
Court cannot review the merits of Claim Three absent a showing of cause for the default, and
prejudice resulting therefrom, or upon a showing that a miscarriage of justice will occur if the
Claims are not reviewed.
Petitioner has not demonstrated cause because he does not explain why he did not present
Claim Three in federal due process terms on post-conviction appeal. Although the absence of
cause obviates the Court's obligation to address prejudice, the Court nevertheless finds that
Petitioner cannot establish prejudice. The Due Process Clause prohibits a sentencing court from
17
relying on materially false or unreliable information when imposing a sentence. See United
States v. Tucker, 404 U.S. 443 , 447-49 (1972); Townsend v. Burke, 334 U.S. 736 (1948). The
possibility that the sentencing court in this case may have determined Petitioner' s sentence
without referring to a forensic report regarding the drug evidence 15 does not demonstrate that the
sentence was based on misinformation. 16 Notably, the sentencing court imposed the sentence for
aggravated possession of heroin in a Tier 4 quantity based on the facts established at the guilty
plea colloquy by Petitioner's own admissions. The Court has already concluded that Petitioner' s
guilty plea was voluntary and intelligent. Petitioner has not provided any basis for the Court to
question the veracity of his plea colloquy statement that he was, in fact, guilty of possessing
15
The Superior Court docket indicates that a drug test was performed, and a lab report concerning
the test results was completed, one month before Petitioner was sentenced. (D.I. 10-8 at 2, Entry
Nos. 13 & 18) While the sentencing transcript does not contain any explicit reference to that
drug test report, the Court cannot definitively state that the sentencing court did not review the
report.
16
The Court construes Claim Three as asserting that the sentencing court denied Petitioner due
process in calculating his sentence without referring to a forensic drug report. In other words,
the absence of a drug report is the source of the unreliability of the sentencing court's
determination. However, distilled to its core, this argument could also be construed as asserting
that the sentencing court violated Petitioner' s due process rights by relying on his plea colloquy
admission that he possessed the type and quantity of drugs for which he was convicted without
double-checking the veracity of his admission against the results in a forensic drug test report. In
other words, Petitioner is arguing that his admission regarding the drug identity and quantity was
unreliable. However, this alternate argument is meritless. The Court has already concluded that
Petitioner's guilty plea was voluntary. Petitioner has not provided any evidence providing a
reason to question the quantity and identity of drugs which he admitted, nor does he assert that a
report on the drug test results would contradict the quantity and identity of the drugs to which he
admitted. Simply stated, Petitioner has not demonstrated that his admission was inaccurate or
unreliable. Consequently, to the extent Petitioner's argument should be construed as asserting
that the sentencing court violated his due process rights by relying on unreliable information he
admitted during the plea colloquy, the argument is meritless. See, e.g. , McReynolds v. US. , 2015
WL 4545653 , at *12 (S.D. Ala. July 28, 2015)(noting that, in the guilty plea context, "[a]ny fact
admitted to by a defendant need not be proven to a factfinder.").
18
heroin in a Tier 4 quantity. In addition, Petitioner does not allege that a forensic drug report
would have contained exculpatory evidence regarding the quantity and/or identity of the drugs .
For all of these reasons, Petitioner cannot demonstrate how the Superior Court' s failure to
double-check the amount and identity of the drug he himself conceded before determining his
sentence violated his right to due process.
Finally, Petitioner has not satisfied the miscarriage of justice exception to the procedural
default doctrine because he has not provided new reliable evidence of his actual innocence.
Accordingly, the Court will deny Claim Three as procedurally barred from federal habeas
review.
D. Claim Four: Defense Counsel Coerced Petitioner to Plead Guilty
In his final Claim, Petitioner asserts that defense counsel coerced him to plead guilty by
telling him there was a forensic report indicating a positive test result for the drugs, and that he
would lose ifhe went to trial. (D.I. 1 at 11) According to Petitioner, defense counsel knowingly
deceived him because no such test results existed. Id.
The record reveals that Petitioner did not present Claim Four to the Delaware state courts
on post-conviction appeal. 17 As a result, Claim Four is unexhausted. At this point in time, any
attempt by Petitioner to raise Claim Four in a new Rule 61 motion would be barred as untimely
under Delaware Superior Court Criminal Rule 61 (i)(l ), and none of the exceptions to Rule
61(i)(l)'s bars apply here. Consequently, the Court must treat the Claim as procedurally
17
As the State points out, Claim Four is at odds with Petitioner's consistent underlying argument
that defense counsel never obtained a forensic report concerning the results of any drug evidence
tests.
19
defaulted, meaning that the Court cannot review its merits absent cause and prejudice, or a
showing that a miscarriage of justice will occur if Claim Four is not reviewed.
Petitioner has not demonstrated cause because he does not provide any reason for failing
to present the instant Claim to the state courts. In the absence of cause, the Court will not
address the issue of prejudice. Moreover, the miscarriage of justice exception to the procedural
default doctrine is inapplicable because the Petitioner has not provided new reliable evidence of
his actual innocence. Accordingly, the Court will deny Claim Four as procedurally barred from
federal habeas review.
IV.
AMENDMENT REQUEST
In his AEDPA Election Form, filed nine months after the State filed its Answer, 18
Petitioner indicates he wishes to amend his Petition with the following three additional
ineffective assistance of counsel claims: (1) defense counsel failed to provide him with a copy of
the toxicology and chain of custody report for the drug evidence ("Claim 5"); (2) defense
counsel failed to file a motion to dismiss the Tier 4 possession of heroin charges based on a lack
of evidence tying him to those drugs ("Claim 6"); and (3) defense counsel failed to challenge the
reliability of the State's evidence by filing a motion to suppress evidence, a motion for
"alignment," or a motion to dismiss the Tier 4 possession of heroin charge ("Claim 7"). (D.I. 17
at 3-4)
18
The Court issued its initial AEDPA Order on December 20, 2016, which informed Petitioner of
his rights and directed him to fill out the attached AEDPA Election Form indicating how he
wished to proceed. (D.I. 3) Petitioner did not file the AEDPA Election Form within the allotted
thirty days. The Court waited an additional few months and, after still not receiving the form,
the Court issued an Order on April 10, 2017 directing the State to Answer the Petition. (D.I. 4)
20
Amendments to habeas petitions are governed by Federal Rule of Civil Procedure
15. See United States v. Duffus, 174 F.3d 333 , 336 (3d Cir. 1999). Since federal habeas corpus
actions are subject to a one-year statute of limitations, 19 a motion to amend a timely filed
habeas petition "will be denied where it is filed after that period expires unless the
proposed amendment relates back to the date of the original pleading within the meaning of
[Rule 15(c)]." Howard v. United States, 533 F.3d 472, 475-76 (6th Cir. 2008). Rule 15(c)
permits relation-back of a proposed amendment to a habeas petition when both the pleading and
the proposed amendment arise out of the same "conduct, transaction, or occurrence." Fed. R.
Civ. P. 15(c)(l)(B). In the habeas context, an amendment relates back to a habeas petition
under Rule 15(c) " [s]o long as the original and amended petitions state claims that are tied to
a common core of operative facts ." Mayle v. Felix, 545 U.S. 644, 664 (2005). A claim will not
relate back, however, to the extent that it "asserts a new ground for relief supported by facts that
differ in both time and type from those the original pleading set forth. " Id. at 650. As explained
by the Third Circuit:
In searching for a common core of operative facts in the two
pleadings, courts should remain aware that the touchstone for
relation back is fair notice, because Rule 15(c) is premised on the
theory that a party who has been notified of litigation concerning a
particular occurrence has been given all the notice that statutes of
limitations were intended to provide. Thus, only where the
opposing party is given fair notice of the general fact situation and
the legal theory upon which the amending party proceeds will
relation back be allowed. For example, we have held that
amendments that restate the original claim with greater particularity
or amplify the factual circumstances surrounding the pertinent
conduct, transaction, or occurrence in the preceding pleading fall
within Rule 15(c) because the opposing party will have had
sufficient notice of the circumstances surrounding the allegations
contained in the amendment.
19
See 28 U.S .C. § 2244(d)(l).
21
United States v. Santarelli, 929 F.3d 95, 101 (3d Cir. 2019)(cleaned up and citations omitted).
A court may also deny leave to amend where the amendment would be futile. See Foman
v. Davis, 371 U.S . 178, 182 (1962); Middlebrook v. Carroll, 470 F. Supp. 2d 411,419 (D. Del.
2007), affd~ 293 F. App'x 858 (3d Cir. 2008). An amendment is futile if the proposed pleading
could not withstand a motion to dismiss. See City of Cambridge Re. Sys. v. Altisource Asset
Mgmt. Corp., 908 F.3d 872, 278 (3d Cir. 2018). Examples of futi lity in the habeas context
include time-barred amendments that do not relate back to the original petition, procedurally
barred amendments, and amendments lacking arguable merit. See Bernard v. United States,
2019 WL 3719405, at *2 (D.N.J. Aug. 5, 2019)(noting that amending with time-barred claim that
does not relate back would be futile) ; Hall v. Phelps, 641 F. Supp. 2d 334, 342 (D. Del. 2009).
In this case, although the Petition is timely, Petitioner filed his amendment request long
after the expiration of AEDPA' s limitations period. Consequently, Petitioner' s three new
proposed Claims are time-barred and, therefore, impermissible amendments, unless they relate
back to the original Petition.
A. Claim Five
The premise of proposed Claim Five is that defense counsel provided ineffective
assistance by failing to provide Petitioner with a copy of the forensic report containing the drug
test results . This argument is similar to assertions raised in Claim One (defense counsel was
ineffective for advising Petitioner to enter a guilty plea without first obtaining a forensic report)
and Claim Four (defense counsel provided ineffective assistance by untruthfully telling
Petitioner there was a forensic report indicating a positive test result for the drugs, and that he
would lose if he went to trial, because Petitioner asserts that no such test results existed). Since
22
these three Claims arise out of a common core of operative facts, proposed Claim Five is not
time-barred.
Nevertheless, the Court will deny Petitioner' s request to include Claim Five in the instant
Petition because such an amendment would be futile. The Court has concluded that Claim One
lacks merit and that Claim Four is procedurally barred from federal habeas review. Given
proposed Claim Five' s similarity to both, as well as Petitioner' s failure to exhaust state remedies
for Claim Five, the Court concludes that Claim Five is procedurally barred_
and lacks arguable
merit.
B. Claims Six and Seven
Petitioner' s request to amend his Petition to include Claims Six and Seven is similarly
unsuccessful. First, Claims Six and Seven cannot escape being time-barred under the relationback doctrine because they are not tied to a common core of operative facts with any of the
Claims in the original Petition. The ineffective assistance of counsel allegations in the original
Petition focus on defense counsel's failure to obtain a copy of the drug evidence test results, and
do not even remotely refer to the allegations in Claims Six and Seven regarding defense
counsel ' s failure to file any pre-plea or pre-trial motions. See United States v. Duffus, 174 F.3d
333 , 337 (3d Cir. 1999)(a completely new claim of ineffective assistance of counsel does not
necessarily relate back to an earlier general ineffective assistance of counsel claim). Second,
even if Claims Six and Seven were not time-barred, granting Petitioner leave to include them in
his Petition would be futile because they are procedurally barred from habeas review. The
record reveals that Petitioner did not present proposed Claims Six and Seven to the Delaware
state courts in his Rule 61 proceeding, he is barred from returning to state court to exhaust state
23
remedies for the Claims, and he has not demonstrated any cause and prejudice for excusing his
default, nor presented new reliable evidence of his innocence.
C. Futility
In sum, Claims Five, Six, and Seven either lack arguable merit, are time-barred, or are
procedurally barred. Therefore, the Court will deny Petitioner' s request to amend on the basis of
futility .
V.
CERTIFICATE OF APPEALABILITY
A district court issuing a final order denying a § 2254 petition must also decide whether
to issue a certificate of appealability. See 3d Cir. L.A.R. 22.2 (2011); 28 U .S.C. § 2253(c)(2). A
certificate of appealability is appropriate when a petitioner makes a "substantial showing of the
denial of a constitutional right" by demonstrating "that reasonable jurists would find the district
court' s assessment of the constitutional claims debatable or wrong." 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473 , 484 (2000).
The Court has concluded that the instant Petition does not warrant relief. Reasonable
jurists would not find this conclusion to be debatable. Accordingly, the Court will not issue a
certificate of appealability.
VI.
CONCLUSION
For the reasons discussed, the Court concludes that the Petition must be denied. An
appropriate Order will be entered.
24
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